David K. Taylor, Bradley Arant Boult Cummings, Nashville, TN
There’s a great argument that lawyer advocacy in an arbitration is more essential than at a trial in court. This post is the seventh of the 10 most horrible, terrible, no good, “bang your head against the door” mistakes that I have seen lawyers make in arbitrations, both when I served as counsel and as an arbitrator. Agreeing to arbitrate a dispute, whether in a contract or by agreement, is a serious decision for any business. There are pros and cons to binding arbitration versus trial in a court that go beyond a series of blog posts, but the fact is that when a dispute is arbitrated, finality is the rule: It is very difficult to appeal an arbitration award. In many instances, representing a party in an arbitration requires more due diligence and work than a trial. Great “arbitration” lawyering is therefore essential but… sometimes does not happen.
No. 7: HEY! Pay Attention to Your Arbitrator.
All “trial” lawyers are taught early in their career to pay attention during a trial to the judge and the jury during witness testimony. How are they reacting to a witness or lawyer? Are they shaking their heads yes or no, nodding off (it can happen), suppressing a laugh or scowl, paying attention, or even rolling their eyes? These reactions can be invaluable to lawyers. It is difficult to gain such insight while you are questioning a witness. Many times, the questioning lawyer will ask a client or co-counsel to watch for any tell-tale reactions. This in-trial strategy is also helped immensely by the way a typical courtroom is set up: separate counsel tables facing a judge who is sitting up high; a jury on one side of the courtroom; and a witness “box” to the side of the judge. In a very large courtroom, counsel tables may be five or even 10 yards away from the bench and witness. Lawyers sometimes are also tied to a podium. A lawyer can then, pretty easily, without being too obvious, observe any reactions, whispers to co-counsel, or notes that are passed.
But an arbitration is different — mainly because of the hearing location and setup. Most hearings take place in a conference room, which can be of varying sizes. There can be a panel of three arbitrators with counsel for the parties facing each other. There may not be more than a few feet between the lawyers and the arbitrator and witness. Witnesses may not be facing the arbitrator but may be sitting on one side of the conference room table. It is therefore not as easy as being in “court” to gauge how a witness is doing or what impact, good or bad, a witness is having on the arbitrator. While most arbitrators attempt to remain stoic even during the worst of witnesses (and lawyers), they (we) are in fact human. All too often, while serving as counsel in an arbitration, I have seen significant reactions or “tells” from an arbitrator indicating whether the arbitrator is really paying attention. Is the arbitrator furiously taking notes, plugging away on a laptop, or looking at a thick exhibit book reading an exhibit that is not even being discussed by the witness? I have also, as an arbitrator, been amazed when lawyers plow through testimony and often move on to new exhibits when it is obvious that I am writing notes, not looking at the referenced exhibit, or even trying to get to the referenced exhibit. I may then tell the lawyer to “hold up” and let me “catch up,” but that should not happen.
In a word, when an arbitration award is binding and almost impossible to appeal, PAY ATTENTION TO YOUR ARBITRATOR!
What are some tips you can follow as a lawyer to make sure that you have the best “vantage point” to observe both the arbitrator and any witness?
- If at all possible, early on (in the initial conference call when the hearings are set) offer to “host” the hearing at your office (if that’s the city where the hearings will take place). Many times, arbitrators do not have large offices with comfortable conference rooms with amenities. That allows you to control what room to use, how it is set up, and provides ease of convenience for you and your clients to hold the hearings on your home base.
- If the hearing is in not in a city where the lawyers/clients/arbitrators live, be the first to offer to find a hearing location.
- If you are not hosting, visit the conference room days before the hearings begin and see what makes sense for the set-up.
- Most importantly, find out when the hearing location opens and get there as early as you can on the first day: Beat the other side there. You can choose the best side of the table (plunk down your exhibit books) and try to designate where the witnesses and the arbitrator will sit (again, plunk down the witness and arbitrator set of exhibits where you want them).
- Finally, just like you would do in court ‑‑ without trying to be too obvious — observe the arbitrator or have one of your colleagues do so, especially during testimony. You may very well pick up valuable tips that may change or alter your strategy and enhance your ability to come out with a favorable ruling.